Kwai Yim Woo v Prior

[2006] QDC 313

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

KWAI YIM WOO and LOP SOON WONG	Plaintiffs
and

CHRISTOPHER DAVID PRIOR and

KATHERINE MARIE THOMAS Defendants

SOUTHPORT

..DATE 21/08/2006

ORDER
Catchwords
Uniform Civil Procedure Rules r9 and r13 - by consent of the
parties, proceedings commenced by claim directed to proceed as
an application after closure of pleadings.
HIS HONOUR: This is an application by the defendants seeking

1

pursuant to Rule 16, "that the proceedings be struck out".
The applicant/defendants exhibit some lack of confidence (and
understandably so) in that they seek alternative relief under
Rule 13, namely that the proceedings continue as if started by

application with appropriate directions. Costs are sought.	10
Pleadings have been completed. The Claim and Statement of
Claim were filed on the 9th of December 2005, the Notice of
Intention to Defend and Defence on the 4th of July, 2006 and
the plaintiff's reply on the 18th of August 2006.	20
The matter is slow to Court in that it concerns the fate of a
deposit paid in connection with the sale of a house property dated the 8th of January 2005. The contract was conditional upon "the full and final settlement of the buyers' property	30
situated at 72 River Crescent, Broadbeach Waters". The
relevant condition revealed there was an unconditional
contract of sale of 72 River Crescent in respect of which the
14th of February 2005 was an important date, presumably the
date for completion.	40
It seems to be common ground now that completion did not
happen. The plaintiff buyers have sought return of their
deposit of $10,000. The defendant vendors have resisted that,
asserting that the deposit should be forfeited to them,	50

presumably on the basis of the plaintiffs' failure to take
proper or timely steps to entitle them to return of the
$10,000.
I accept from Mr Richardson for the plaintiffs, he not having 2 ORDER 60

1

been contradicted by Mr Delaney, that before these proceedings
(which seek "Declaratory relief that the contract of 8th
January 2005 contained a condition precedent" and that the
contract had no effect, also return of the deposit) the

defendants, by their solicitors, had foreshadowed a Supreme	10
Court application by them and then a Magistrates Court claim, in which connection they enquired whether Mr Richardson's' firm had instructions to accept service.
Mr Delaney says that his clients' defence, which curiously	20
does not include the counter-claim one would expect for
forfeiture of the deposit, was filed not to concede that a
claim was appropriate, but rather to protect his clients'
position after some months of frustration in seeking to get Mr
Richardson to agree that the proper procedure was by way of	30
application.
Last Friday the plaintiffs apparently agreed to the relief
sought under Rule 13. I am not sure whether that involves any
admission that the claim was inappropriately started as a	40
claim rather than an application.
...
HIS HONOUR: It seems to me that the…